Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Friday, December 2, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

This is the case cited by the ALJ in its decision. The case is from 1952:

"NEW YORK STATE DEPARTMENT OF LABORUNEMPLOYMENT INSURANCE DIVISIONADJUDICATION SERVICES OFFICE

October 2, 1952INTERPRETATION SERVICE – BENEFIT CLAIMSVOLUNTARY LEAVING OF EMPLOYMENTGrievances and AnnoyancesReferee’s Case Number 51-325-52R

VOLUNTARY LEAVING OF EMPLOYMENT – CONSTANT NAGGING AND CRITICISMConstant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee’s voluntary leaving of employment.

Referee’s Findings of Fact: A hearing was had at which claimant and representatives of the employer and the Industrial Commissioner appeared. Testimony was taken. Claimant, a porter, filed a claim effective April 28, 1952. By initial determination effective the same date, he was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was employed at a club operated by a fraternal organization from August 7, 1951 to April 25, 1952, at 90 cents per hour, as a porter. He voluntarily left his employment on the latter date because the building superintendent was constantly criticizing his work and used vile and obscene language in addressing him. He indicated that he was unable to perform the work to the satisfaction of the superintendent who constantly nagged him regarding his work. The employer notified the insurance office that claimant had quit: "Work not satisfactory and we are just as pleased that he did quit of his own accord."

Referee’s Opinion and Decision: It is clear that the superintendent was dissatisfied with claimant’s services and, apparently, was desirous of terminating his services. Claimant quit his job because he felt that he could no longer endure the criticism and nagging of the superintendent. In Consiglio v. Administrator, Unemployment Compensation Act, 137 Conn. 693, 696 (Conn. Sup. Ct., VL-500.752-7, BSSUI.) The Court in part said:

"Is an employee justified in quitting his job because of nagging? That, it seems, would depend upon the extent and nature of the nagging. Goldberg testified, ‘I just couldn’t stand it anymore. I was afraid I was going to get very sick and I just couldn’t stand it.’ It is found by the Commissioner that ‘For a period of four or five months prior to February 20, 1951, the senior partner was finding fault with the claimant’s work but the claimant knew that most of the fault finding was meaningless.’ This latter statement is based, apparently, on what the son testified. Nagging may be meaningless to the fellow doing it but not necessarily to the fellow on the receiving end. It is evident that Goldberg was much concerned about the constant fault finding for the last four or five months of his employment. Did he act as a reasonable person would have acted in the light of all the circumstances in quitting his job?

"There is a difference between legitimate criticism and nagging. Criticism may be justified; it can finally, if kept up long enough, degenerate into a constant nagging. There is a limit to what a man is obliged to take in order to hold his job. It is evident that there was nagging. The claim is that he was supposed to take it, everybody did; that it was meaningless. We must use common sense in deciding this matter of extent to which the employees must take it. He can be flighty or he can be patient till finally the situation becomes unbearable. No employee should have to take constant nagging. In this case it was clearly not a quick temper or impulsive decision which made the employee quit. No sensible man is giving up a $135 a week job merely because he is sore or angry. An employer can be so mean as to drive an employee off the job. The claim that you are supposed to take it is not a sufficient answer."

The same reasoning applies in this case and I conclude that claimant was justified in voluntarily leaving his employment. The initial determination is overruled. (August 8, 1952)"

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/